The case Muhammad Allahdad Khan and Anr. vs Muhammad Ismail Khan, (1886) ILR 8 All 234 is an important case on ‘acknowledgement of sonship’ in muslim law. In the case, the court decided that it is not enough to be called ‘son’ by guardian, the alleged father should clearly have declared or acknowledged a person as his son. Calling ‘son’ out of custom does not confer the sonship on a person.
Facts of the case
- One Ghulam Ghaus Khan was twice married, and he also had a concubine. The latter survived him, whilst both of his wives pre-deceased him. He died on the 6th November 1879, and left several legitimate and illegitimate children, the former being by his second wife, Moti Begam, and, the latter by the concubine Musammat Nanhi.
- The plaintiffs were eight persons–namely, the three full sisters of Ismail Khan, Nanhi, styling herself Nanhi Begam, widow of Ghulam Ghaus, and her three sons and one daughter, calling themselves the lawful issue of Ghulam Ghaus Khan. These plaintiffs claimed their respective shares in the property of Ghulam Ghaus deceased.
The first case- No custom allowed that ratify the rule of primogeniture
First the case was that, the defendant (Ismail Khan), set up as a defence to this suit that Nanhi Begam was not the lawful wife of Ghulam Ghaus Khan, and her children by him were illegitimate, and therefore her claim and that of such children to inherit Ghulam Ghaus Khan’s estate was not maintainable; and that by the custom of the family, which the will of Ghulam Ghaus Khan recognised and affirmed, the eldest son succeeded, and females were excluded from succession, and therefore the claim of the other plaintiffs, the daughters of Ghulam Ghaus Khan, was not maintainable.
The Court found on the evidence in the case that the children of Nanhi Begam by Ghulam Ghaus Khan had been uniformly treated by their father and his lawful daughters and son as legitimate, and held, relying on Khajooroonissa v. Bowshan Jehan[1]and the Privy Council decision therein cited;
that it must be presumed that Nanhi Begam was the lawful wife of Ghulam Ghaus Khan, and her children by him legitimate. It also found that there was no such custom of succession in the family of Ghulam Ghaus Khan as was set up by the defendant; and it held, relying on Khajooroonissa v. Bowshan Jehan that, according to Muhammadan law, a devise of property could not be made to one heir to the exclusion of the other heirs without their consent;
and that therefore the plaintiffs could not be excluded from inheriting by the will of Ghulam Ghaus Khan in the defendant’s favour. It accordingly gave the plaintiffs a decree for their legal shares of the estate of Ghulam Ghaus Khan.
The defendant appealed to the High court but High court also affirmed the above quoted decision of court of first instance partly and however, dismissed the claim of nanhi begum and her children but affirmed the claim of Ghulam Ghuas khan’s daughters and thus modified the decision.
Second Case- Acknowledgement of paternity
While above mentioned case was instituted, appealed, and decided, during the whole time that the above-mentioned proceedings lasted, Allahdad Khan never applied to be made a party and he did not bring his present suit until after the expiration of three years from the disposal of the above-mentioned appeal, and of four and a half years from the date of the death of Ghulam Ghaus Khan.
He alleged that he and the defendants Ismail, Musamrnat Kdayat-un-nissa, Karamat-un-nissa, and Barkat-un-nissa, (sisters) were the children of Ghulam Ghaus Khan by Musamrnat Moti Begam, his lawful wife; that cases and proceedings have taken place in his absence and without his knowledge.
The defendants replied that the plaintiff was not the son of Ghulam Ghaus Khan; that he was not born in wedlock; that he came with Moti Begam to Ghulam Ghaus Khan’s house; that under the Muhammadan law he did not possess any right in the estate left by Ghulam Ghaus Khan; that his allegations were entirely false.
All the proceedings have taken place in his knowledge. he conducted the proceedings in the said cases as a karinda (agent) without advancing his own right against the defendants in any Court; that had plaintiff been the eldest son of Ghulam Ghaus Khan, his name would surely have been recorded in the village administration paper, verified by Ghulam Ghaus Khan; that, as a general rule, any son or daughter brought by a wife with her to the house of her second husband is called by the latter his son or daughter: therefore if Ghulam Ghaus Khan has on some occasion called plaintiff No. 1 his son, it shall not make the said plaintiff actually his son.
The court observations and decision
After adducing the evidence, the court concluded that,
“From the evidence on the record, I am satisfied that Allahdad Khan was the son of Moti Begam, and that he was born a year or two before Moti Begam was married to Ghulam Ghaus Khan. Prior to that marriage Moti was a prostitute, and there is no proof who was the father of Allahdad. There is no evidence that Moti cohabited with Ghulam Ghaus Khan before their marriage.
Had she done so and borne a child to him, it is improbable that the marriage would have been sp long delayed, and if Ghulam Ghaus believed Allahdad to be his son, he surely, after he had married that son’s mother, would have taken effective steps to legitimate his son, and to make it widely known that Allahdad was his eldest son and an heir to his property. He did not do so.
He was thus brought up with his half-brothers and sisters, the legitimate children of Ghulam Ghaus Khan and Moti Begam; and as his own father’s name was unknown, as he came to Ghulam Ghaus Khan’s house in his infancy, was the son of Ghulam Ghaus Khan’s wife, and the brother of Ghulam Ghaus Khan’s children, he doubtless came to be regarded by Ghulam Ghaus as a step-son, and to be called his son. If Ghulam Ghaus did, under the circumstances above mentioned, speak of Allahdad as his son, he apparently did not thereby act contrary to the custom prevailing amongst Muhammadans.”
While examining the relationship of Allahdad khan with his allegedly father Ghulam ghuas khan, the court looked upon the facts, that it was conceded that there was not any ill-feeling between Allahdad and Ghulam Ghaus prior to 1879. The former deposed:
“At the beginning of 1879 there was some variance between myself and Ghulam Ghaus Khan. He died on the 6th November 1879. The matter of difference was that my sister Fidayat-un-nissa, who was a widow, was about marrying a second time, to which Ghulam Ghaus and Ismail Khan had consented, but I had not been consulted. There was no difference before then.”
The court observed that there was no reliable evidence that there was, even in 1879, any difference between Ghulam Ghaus and Allahdad, and if the latter was the eldest son and was on good terms with his father, there was no apparent reason why his consent to his sister’s re-marriage should not have been asked for equally with that of Ismail, his younger brother. His admission that he was not consulted told against the position he sets up for himself.
The court referred the case of Sadukat Hossein v. Mahomed Yusuf 1883[2], in that judgment, the following passage occurs:
“The Judge of the primary Court who saw and who heard the witnesses and the Judges of the Supreme Court who examined into the evidence, afterwards concur in opinion that there was sufficient evidence of the acknowledgment by Amir Hossein of Selim as his son, from which an inference is fairly to be deduced that the father intended to recognise him and give him the status of a son capable of inheriting. Upon that point both the Courts come to one conclusion, and that conclusion their Lordships adopt. They think that the status of Selim as son has been sufficiently established by recognition so as to enable him to claim as heir.”
The court finally decided the point that,
“Allahdad was not the son of Ghulam Ghaus Khan; that he was not legitimated by Ghulam Ghaus, and that he well knew that he was, at the highest, nothing more than Ghulam Ghaus Khan’s step-son, had never been called his son except by courtesy, and had no right to any share in his (Ghulam Ghaus Khan’s) property.”
Reference
Muhammad Allahdad Khan And Anr. vs Muhammad Ismail Khan: (1886) ILR 8 All 234
[1] I.L.R. 2 Cal. 184 : L.R. 3 Ind. Ap. 291
[2] , I.L.R. 10 Cal. 663 : L.R. 11 Ind. Ap. 31